Sirvelis v HM Prison Brixton [2005] EWHC 2611 (Admin)

Case No CO/5686/2005[2005] EWHC 2611 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Friday, 14th October 2005
Strand
London WC2
B E F O R E:
LORD JUSTICE SCOTT BAKER
MR JUSTICE OWEN
Between
ERLANDAS SIRVELISClaimant-v-
Between
THE GOVERNOR OF HMP PRISON BRIXTONDefendantTHE GOVERNMENT OF LITHUANIAInterested Party
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR M SUMMERS (instructed by Stuart Miller & Co Solicitors) appeared for CLAIMANTMR P CALDWELL (instructed by Treasury Solicitor) appeared for INTERESTED PARTY
J U D G M E N TFriday, 14th October 2005

LORD JUSTICE SCOTT BAKER:

[1]The claimant's extradition is requested by the Government of Lithuania. The claimant challenges his detention in custody pursuant to an order for committal by the Bow Street Magistrates' Court on 21st July of this year to await a decision by the Secretary of State for the Home Department for extradition to Lithuania.[2]Section 11(3)(b) of the Extradition Act 1989 provides that:
"Without prejudice to any jurisdiction of the High Court apart from this section, the court shall order the applicant's discharge if it appears to the court in relation to the offence, or each of the offences, in respect of which the applicant's return is sought, that - ... (b) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; ... It would, having regard to all the circumstances, be unjust or oppressive to return him."
[3]This provision repeats materially identical provisions in earlier legislation and indeed has been replaced by a materially identical provision in the Extradition Act 2003 which would have been applicable had the proceedings for the claimant's return been started at a later date.[4]"Unjust" is directed primarily to the risk of prejudice to the accused in the conduct of the trial itself. "Oppressive" is directed to hardship to the accused from changes in his circumstances that have occurred during the period to be taken into consideration. But there is room for overlapping between these two concepts and they cover all cases where to return a claimant would not be fair (See Kakis v Government of Cyprus [1978] 1 WLR 779).[5]It is common ground that the relevant period runs from the last date of the offences alleged, that is 9th March 1999, to the date of the present challenge. Furthermore, it is common ground that section 11(3)(b) is not restricted to rare or exceptional cases, and also that section 11(3)(b) covers situations where, by virtue of delay, a defendant will be unable to give a proper account of himself by dimming recollection and/or trace witnesses still able to recollect specific events or witnesses, or materials or certain lines of defence are no longer available even in cases of relatively short delay. Finally, it is common ground that section 11(3)(b) involves no exercise of discretion once injustice or oppression is established. Discharge follows as a matter of right.[6]The allegations against the claimant are four offences of conspiracy to burgle and, in the alternative, burglary. His case is as follows. He was born in Lithuania in February 1969 and so now is aged 36. He is a man of good character. When he finished his secondary education he underwent an obligatory period of national service, during which he met his wife Marina. His son, Grazvidas, was born in 1988. He and his wife married after he completed national service and they lived with his parents. He studied to be a mechanic, as his father was, and worked with his father. In 1994, their second son, Matas, was born and due to considerations of lack of space they moved out of his parents' house. About this time his wife developed heart problems and was unable to work. They had very little income. In 1998 a daughter was born and his wife's health deteriorated. The country was in recession and the living conditions were very poor.[7]In March 1999 the claimant was arrested for the four burglary charges. Initially he was in custody, but was released in July 1999, having spent about 100 days in custody. This was apparently in contradistinction to his co-defendants.[8]The claimant says Lithuania has a mafia which is prevalent throughout the country and is represented in almost every town or village. The local mafia came to learn that he had provided information to the police regarding his co-defendants. As a result it became apparent to him and to his family that they were the intended targets of the mafia and that his life and that of his family were in immediate danger. People started demanding money from him and from his family. Others were visibly scared to be associating with him or with his family. His family were, he says, subject to random public assaults.[9]Eventually he was summoned to appear before the local mafia. As there was, as he put it, no way out for him, and nowhere safe to go elsewhere in Lithuania, he had no choice but to leave the country. He says that he left as a result of fear for his own safety and that of his family, and that he arrived in the United Kingdom on 23rd July 1999. In the meantime his wife and family were hidden by his parents, but shortly afterwards they too got out and joined him in this country. The claimant says that he was then, and has remained ever since, of the view that the local police were impotent to protect him and his family from the threat of the mafia.[10]The claimant says in paragraph 10 of his statement:
"I did not leave Lithuania by way of deceit, and did so in my own name having obtained a business visa from the Lithuania authorities. I left with the full knowledge of the Lithuanian and United Kingdom authorities. I travelled on my own passport. I entered the United Kingdom in my own name and was given permission to remain. "
Since fleeing Lithuania in 1999, I have been living openly in the United Kingdom with the permission and knowledge of the United Kingdom authorities."[11]He says he had been working as a labourer from 2000 to 2001 and was later self-employed as a dry-lining fixer for a company based in Kent. He was earning a modest wage that supported his family.[12]The claimant further says that he has done nothing to conceal his identity or his whereabouts from the Lithuanian authorities and has lived openly under his true and correct name. He says that since arriving in this country it has been a condition of his leave to remain that he should be in self-employment. He was obliged to submit to the Home Office proof of National Insurance contributions, tax returns and of the existence of his business by audited accounts, financial statements, bank statements and statements to show where he was living. He says that he has always complied with these requirements. The claimant states that he was paying tax in his own name in the UK, that he has a National Insurance number and has paid the appropriate National Insurance contributions.[13]It is not disputed that he has lived openly in this country and that the account of what he has been doing here, that he gave in his statement, is broadly correct.[14]Further, the claimant goes on to say that even after he was arrested, following an altercation in Romford in August 2003, he gave his own name and was released immediately.[15]The claimant's son, Grazvidas, has undertaken education in England and has successfully completed English courses at Barnet College and is now settled at Colindale College studying marketing. The claimant's other children are at school. He states that if he is returned to Lithuania he has good cause to fear for his life and the lives of his close family will be in danger from the Lithuanian mafia. He says that certain events in this country give him cause to believe that the Lithuanian mafia are still actively seeking him. He describes them as follows:
"On 21st December 2003, intruders entered my house in Cricklewood and tied up and assaulted my wife, and stole various personal effects. From subsequent events... I believe that this is linked to events in Lithuania and that I was the intended target. "... on 8th January 2004, I was in my house alone. Intruders again entered my house and this time attacked me... I was left unconscious in a pool of blood where I was later discovered by my family when they returned home. I believe that this is linked to the events in Lithuania outlined above... I did not report this attack to the police through fear. "
On 9th February 2004, I saw armed intruders enter the building. They were carrying weapons. I heard the screams of the female occupant of a neighbouring flat. It was apparent that she was being kidnapped. My wife called the police. I believe that this is also linked to events in Lithuania and that my family may have been the intended target. "The police that attended arrested me in respect of another matter, for which I am currently awaiting trial at Wood Green Crown Court. [That matter is apparently an allegation of aggravated burglary, but it seems to me that that is of no real materiality to the issue before the court today because the Wood Green case remains unresolved at this juncture and therefore the claimant remains, at this stage, innocent of it in the eyes of the law.] My family have now moved and have not been the subject of further attacks."[16]Mr Caldwell, for the Government of Lithuania, submits that the matters described by the claimant in his statement should be viewed in a rather different light. First, he says, the claimant did not seek protection from the Lithuanian police following his release from custody and yet he trusted them to the extent that he gave them information about his co-defendants.[17]Secondly, when the claimant left Lithuania, he was subject to a written undertaking not to leave that country which was the equivalent of bail as we know it in this country.[18]Third, the claimant was under an obligation to attend his court hearing on 29th September 1999 but did not. Nor did he tell the authorities of his whereabouts.[19]Fourthly, the claimant says he left Lithuania on a business visa, but he has not produced it and it is difficult to see how the grant of such a visa fits in with his undertaking not to leave Lithuania.[20]Fifthly, it is clear that the claimant has only really told this court part of the story in his witness statement, because, in the light of what Mr Caldwell draws to our attention, there are somewhat different aspects to it.[21]Sixthly, the Lithuanian government were kept in the dark about the claimant's presence in the United Kingdom until they eventually discovered him in March 2003. The lion's share, therefore, of the passage of time since he left Lithuania lies at his door and the Government of Lithuania cannot be faulted for letting time pass before seeking his extradition.[22]Finally, the claimant's description of the three events in the United Kingdom, which he says he believes the mafia were behind, quite simply lacks credibility. Why, asks Mr Caldwell, were the first two of the incidents not reported to the police? Furthermore, they are, as is his account of what was happening to him from the mafia in Lithuania, completely uncorroborated.[23]Mr Mark Summers, who has appeared for the claimant, submits that this is a case where it really is shown that it would be oppressive for the claimant to be returned to Lithuania. He says that that oppression is shown, both in the circumstances that existed before the claimant left, in particular with regard to the mafia's interest in him, and, furthermore, the circumstances that now prevail since he has been able to put down roots in this country.[24]Mr Summers submits that a good deal of what the claimant says in his evidence, in particular about the mafia, and also about obtaining the business visa from the Lithuanian authorities is unanswered by any evidence from the Lithuanian government. Therefore, he submits, his client's evidence should be taken at face value.[25]In my judgment, however, the court is entitled to look carefully at the account given by the claimant and to form a view whether it, in reality, lacks any real credibility. In my judgment, on its face, his account is inherently unlikely. Take, for example, the grant of the business visa. That, on its face, is entirely inconsistent with his written undertaking not to leave the country. Mr Summers submits that it is matter for the Lithuanian government to explain. But, it seems to me, it would be very simple for the claimant to explain what has happened to the business visa, if he has not now got it, and for it, or a copy, to be provided if, in truth, it ever existed. In my judgment the clear inference is that it did not.[26]It is, of course, very easy for someone in the claimant's shoes, who does not wish to be returned to Lithuania for obvious reasons, to make up a fictitious account about fear of the mafia. He had, of course, on the known facts, a very good reason for wanting to leave Lithuania as a fugitive from justice so as not to have to answer the charges that were against him.[27]The next point taken by Mr Summers is that on careful examination the passage of time since the claimant left Lithuania, cannot all, or even a substantial part of it, from the fault point of view, be laid at his door.[28]In my judgment, there is a simple answer to this. The Lithuanian authorities contend that they have actively been looking for the claimant since he did not appear at the court and there is no reason not to accept that evidence.[29]Mr Summers says that there are inconsistencies of the date as to when the Lithuanian government first learned where the claimant was. First, it is said it was put forward that they only discovered in August 2003, following the third of the three altercations in this country, the one to which the police were called. Later, in Mr Paulius Koverovas' statement of 8th September 2005, it is said that valuable information about place of stay of the claimant was received on 31st March 2003.[30]I am unpersuaded that the two references to these dates are entirely inconsistent. But even if there is an inconsistency, it is only a matter of a few months. I would not conclude that, as a result of any inconsistency of this kind, the court should not accept that the Lithuanian government were actively trying to discover the whereabouts of the claimant from September 2003. If they used their best endeavours, as in my judgment the evidence shows that they did, then they were not culpable.[31]What then is left of the claim for oppression? It is said, and I summarise, that it would work a considerable hardship on the claimant, his wife and family were he now to have to leave. There is evidence that his wife suffers from serious health issues, albeit they have never been specified in any evidence beyond it being said that they are heart problems. Secondly, his family cannot claim benefits and therefore his wife would have to work, which she may find very difficult because of her heart problems. Thirdly, the family has no other source of income. On the other side of this particular argument there seems to me to be a clear inference that the wife and family have been managing financially somehow during the not insignificant period during which the claimant has been in custody in this country.[32]Then it is submitted that there is the potential risk to the claimant on his return to Lithuania. But that, it seems to me, depends on the view that the court takes of the credibility of his claim. For my part, I am not impressed with the credibility of the story that he tells.[33]In my judgment the claimant has not shown it would be either unjust or oppressive to return him to Lithuania. He should not have left Lithuania in the first place and the passage of time is due to his having kept the Lithuanian authorities in the dark about where he fled to.[34]Having located him the government proceeded without, in my judgment, undue delay. True, his removal will cause some hardship to, in particular his wife and family, but not, in my judgment, such as to cross the threshold of oppression and not such as to cross the threshold of Article 2 or 3, or indeed Article 8, of the European Convention on Human Rights, bearing in mind the balancing considerations of Article 8(2) that have to be taken into account.[35]Mr Summers indeed readily accepts that if he does not succeed in his arguments on oppression, it is unlikely in the extreme that European Convention on Human Rights arguments will succeed, particularly bearing in mind the observations of the House of Lords about the threshold required in the case of Razgar. In these circumstances I would refuse this application.

MR JUSTICE OWEN: I agree.

[37]MR SUMMERS: My Lord, I am grateful. My Lord, may I please ask for what used to be called Legal Aid Taxation but now is called something like Assessment of Legal Services Funding?

LORD JUSTICE SCOTT BAKER: If you need it, you can have it.

[39]MR SUMMERS: My Lord, I am grateful.

LORD JUSTICE SCOTT BAKER: Thank you both very much for your assistance.